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SEA vs. PKWARE
Shareware Company Threatens BBS World That Gave It Life
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Last April, System Enhancement Associates, vendors of the archive
utility ARC, filed suit against Phil Katz, author of the archive
programs PKARC and PKXARC, and his company PKWARE. SEA claimed
trademark infringement on the name "ARC," and violation of their
copyright on the "look and feel" of ARC's command-line user-
interface, in addition to charging Katz with appropriating ARC
program code.
The company demanded all profits from PKARC and PKXARC, treble
damages, statutory damages at the highest level allowed, and
attorney fees. It also requested that all copies of PKARC and
PKXARC, from those owned by bulletin board users to those
licensed by businesses, be impounded, and that Katz be barred
from ever again selling or distributing the programs.
In August, SEA and PKWARE settled out of court. SEA obtained the
source code for PKARC and PKXARC, and PKWARE's customer list, and
Katz was required to pay SEA royalties on the program back to 1985,
in addition to attorney's fees and legal expenses--an amount that,
according to documents on file at the Milwaukee County Federal
Courthouse, totals $62,500.
He also agreed not to use the word "arc" in a trademark sense.
Under the settlement Katz is permitted to license his PKARC and
PKXARC programs (or PKPAK and PKUNPAK, as they are now called) from
SEA until January 31, 1989. (Anyone who licenses PKPAK and/or
PKUNPAK from Katz prior to then may continue to use those versions
of the program perpetually, even after January 31, 1989.)
Recently SEA filed contempt of court charges against Katz. While
the company has kept details of their allegations under seal, they
appear to be alleging that any use of the word "arc" by Katz,
even as a descriptive or generic term (for instance, to refer to the
act of achiving a file--whether one is using SEA's ARC or ZOO or
any other archiving utility--as "arcing" it) is in violation of the
settlement.
SEA has lately been contacting other software developers whose
products make use of the ARC file format and threatening legal
action. Gary Conway, author of NARC, an archive extraction
utility, was contacted by the company, which tried to pressure him
to license the ARC format and turn over the source code of NARC.
Don Kinzer of Polytron received a similar call from Thom
Henderson of SEA. Henderson told Kinzer that if a software
product had the ability to read an ARC file--not create or
extract it, merely read it--SEA would require the vendor to
obtain a license from SEA.
Settlement Issues and Rumor Mongering
As part of the PKWARE-SEA settlement, both parties agreed to
refrain from any comment on the settlement. Not surprisingly,
unfounded rumors about the settlement have proliferated. One
such rumor is that the judge in the PKWARE-SEA case had an outside
consultant compare SEA's and Katz's source code. When the
consultant found plagiarized code in PKARC, the story goes, Katz
settled quickly to save face. Not true. No attorneys for either
SEA or Katz had ever met with the judge prior to the settlement,
and at no time did the judge ever retain an expert or himself see
the source code.
The real issues in the case were SEA's charges that Katz had copied
ARC's program code and that he had violated the company's trademark
on the word "arc."
In regard to the first complaint, there are only two pieces of
code in ARC with non-trivial algorithm: the squeeze code and the
crunch code. SEA copied these almost verbatim from public domain
sources. Katz's use of the same public domain sources resulted
in a program that ran four times faster than the then current version
of SEA's ARC. No competent programmer could ever conclude that Katz
had plagiarized SEA code.
SEA's claim that it owns a trademark on the word "arc" is, as one
UUCP mail user noted, like Digital Equipment insisting that it
owns the word "equipment." The word "arc" as an abbreviation for
"archive" has been in the public domain long before either SEA or
PKWARE entered the scene. Any word which has become a part of
popular parlance, as "arc" has, cannot be protected as a
trademark.
Nevertheless, SEA claims that no one else can use this word to
describe their archive utilities, and that Katz used it to
intentionally confuse users and capitalize on the popularity of
SEA's ARC.
Finally, SEA claimed in its lawsuit that Katz violated the
copyright on the "look and feel" of ARC's user-interface. Anyone
who has ever used both ARC and PKARC knows that neither touts an
interface that is anything more than a few commands and switches
entered at the DOS command line. There are no menus. There are
no full-screen displays. There is nothing artistic or seminal in
the interface of either.
Yet, SEA argued in its suit that Katz "substantially copied and
plagiarized the entire appearance and user interface and screens
which result when a computer user interacts with or uses [ARC]."
By the same logic the author of Fido bulletin board software may
as well sue the designer of RBBS.
(Note: If you have any questions about the SEA suit, please see
the copy of the complaint filed in that suit which has been
circulating on bulletin boards and on-line services. A press
statement concerning the settlement is also in circulation.)
Why You As a User Should Care
Over the past year the popularity of Katz's PKARC/PKXARC programs
among both bulletin board and business users surpassed that of
SEA's ARC by a wide margin. Many consider the suit that SEA
waged against PKWARE, as well as the company's subsequent legal
bullying of other shareware archive software developers, as legal
coercion intended solely to drive its competitors out of
business--a tactic not unheard of in the computer industry.
Defending your software against a suit such as the one filed by
SEA against PKWARE can run from $100,000 into the millions, as
copyright and patent suits are the most costly forms of
litigation to defend against. If your product is not grossing
over a million in sales, you will be advised (nay, forced by
economics) to seek an early settlement--as Katz did.
Consider what this means if you're a Dan Bricklin-type
programmer running a small software operation out of your
home. The program you slaved over for months so that it might
win you emancipation from your 9-to-5 job, you might be forced to
destroy in a "legal settlement" over a bogus suit. (Some of us
know people besides Katz to whom this has happened.)
Consider what this means if you're a user. Your choice in
software is being dictated, not by a software package's intrinsic
merits, but legal manipulation. Legal manipulation that favors
the litigant with the most money as opposed to the one with the
best product.
It also means that great programmers are spending their time in
court when they could be busy creating better products for the
marketplace. Unfortunately, legal experts are predicting an
escalation in such suits over the next decade.
What Can We Do?
As a user you can stand up and say that you're not going to put
up with companies that use the courts to strangle their
competition, that employ lawyers and lawsuits to bully companies
and independent programmers out of existence, that dish out
frivolous suits rather than decent products.
No, you do not have to take it anymore, and yes, you do have the
power to change things.
A number of bulletin board operators, to protest SEA's legal
bullying of its competitors, have stopped using SEA's ARC to
archive programs on their systems. Some have pulled SEA
products from their file collections. We suggest that you
likewise boycott SEA's ARC, as well as the company's SEADOG
mail program, until the company desists its harassment of archive
authors.
But boycotts alone are rarely effective. We also ask that you
write to SEA. Accompanying this file is a "form letter" to SEA
(in the accompanying file LETTER.TXT) that you can print out,
sign your name to, and mail. Feel free to add to or change
anything in the letter.
In addition, please upload this file and the accompanying file
LETTER.TXT onto any bulletin board or on-line system that you
call. If you are a sysop who supports this campaign we ask that
you mention it in your board's introductory screen and ask users
to download these files.
If enough of us speak up and let it be known that we are opposed
to this kind of misuse of the legal system, we will be sending a
loud message to software vendors that the computer user community
will not tolerate firms that attempt to drive their competitors
out of business through legal harassment.
Remember that together we have built the PC community into the
most vibrant computer user community in history, and by uniting
we can make it even better.
Matt Anderson
Sysop, Alaska EMS RBBS
Fairbanks, Alaska
907/463-4988
Rod Bowman
Sysop, PC Spectrum
San Bernardino-Area, California
714/945-2612
Ed Branley
Sysop, Minas Trinith RBBS
New Orleans, Louisiana
504/455-8665
Danyaon Coston-Clark
Sysop, ACCESS: ONLINE BBS
Malverne, New York
516/887-5804
Mike Coticchio
Sysop, Beginnings BBS
Levittown, New York
516/796-7296
Juan Davila
Sysop, Mega-D RBBS-PC
Puerto Rico or Thereabouts
809/751-7728
Michael Davis
Sysop, Horizon RBBS-PC
Dallas, Texas
214/881-9346
Ron Fowler
Author of MEX-PC Communications Program
Fort Atkinson, Wisconsin
John Friel III
Author of Qmodem / Sysop, Qmodem PCBoard
Cedar Rapids, Iowa
319/233-6157
Judy Getts
Contributing Editor/Telecommunications
PC World Magazine
David Gibbs
Sysop, The Midrange System
Chicago, Illinois
312/439-9679
James A. Grettum
Sysop, RBBS-PC of Fargo
Fargo, North Dakota
701/293-5973
Chris Harrower
Co-Sysop, Lancaster Area BBS
Lancaster, Pennsylvania
717/394-1357
Andrew Hoag
Sysop, Satellite RBBS
North Dakota
701/232-3811
Jerry Hunter
Sysop, DMC Switchboard Network RBBS-PC
Arkansas
501/636-2810
Andy Jones
Sysop, Everglad RBBS-PC
Tampa-Area, Florida
813/992-5993
Bob Jones
Sysop, BJ's RBBS-PC
Pasadena-Area, California
818/248-1087
Loren Jones
Sysop, RBBS-PC of Chicago
Chicago, Illinois
312/352-1005
Henry Kisor
Sysop, Word Processing BBS
Chicago, Illinois
312/491-6995
Jeff Krueger
Sysop, A Different BBS
Chicago, Illinois
312/589-0074
Rick Lawsha
Sysop, STORK RBBS
Galesburg-Area, Illinois
309/342-0637
*.* Loban
Sysop, Oregon Net
Anaheim-Area, California
714/945-2612
Gene Lowry
Sysop, Bigfoot II RBBS-PC
Arizona
602/886-7943
Robert Mahoney
Sysop, Exec-PC BBS
Milwaukee, Wisconsin
414/964-5160
Sal Manaro
Sysop, Underdog's Mininet
Seattle, Washington
206/725-9233
Jon Martin
Sysop, Aircomm
Bay Area, California
415/689-2090
George Maynard
Sysop, OBIE RBBS-PC
Cleveland-Area, Ohio
216/684-2059
Jim Oswell
Sysop, The Grapevine RBBS-PC
Charlotte-Area, North Carolina
704/364-3632
Michael Part
Sysop, The Wicked Scherzo
Pasadena, California
818/906-8683
Tim Pearson
Sysop, LANStar RBBS-PC
Springfield, Missouri
417/673-2283
Terry Rossi
Sysop, RTC-BBS
New Jersey
609/654-0999
Jerry Shenk
Co-Sysop, Lancaster Area BBS
Lancaster, Pennsylvania
717/394-1357
Don Smith
Sysop, NorthWest Ohio RBBS
Toledo, Ohio
419/448-1421
Phil Stults
Sysop, The LANS Multi-Node BBS #1
Gary, Indiana
219/884-9508
Maurice Thaler
Sysop, Power Board BBS and Audio Projects BBS
Madison, Wisconsin
608/221-8422
Bill Tulles
Sysop, AV-SYNC
Atlanta, Georgia
404/320-6202
Paul Waldinger
Sysop, Sound of Music BBS
Oceanside, New York
516/536-8723
Bob Westcott
Sysop, Stateline BBS
New Hampshire
603/424-5497
Randall Young
Sysop, ATT-PAC BBS
The Bay Area, California
415/829-6062
Posted September 5, 1988.
[Note: Please do not alter or augment this file. If you are a sysop
or software author and would like to add your name to this list of
endorsers, please leave a message containing your name, phone number,
name of your BBS and/or product, and the name of the city that your
board resides in, to Judy Getts on one of the following boards: Exec-PC
in Milwaukee at 414/964-5160; Loren Jones' RBBS-PC in Chicago at
312/352-1035; or the Sound of Music in Oceanside, New York at
516/536-8723. We thank you.]
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